261 A.D. 903 | N.Y. App. Div. | 1941
Action to recover damages for wrongful death allegedly the result of .defendants’ negligence. At a jury trial of the issues the trial court dismissed the complaint as to both defendants at the close of plaintiff’s proofs. Upon that dismissal, judgment in favor of each of the defendants dismissing the complaint on the merits was duly entered. From that judgment plaintiff appeals. Judgment in so far as it is in favor of defendant City of New York, affirmed, with costs. In so far as the judgment is in favor of defendant Bondy, it is reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. In our opinion (1) the plaintiff failed to establish a cause of action against defendant municipality (Hubbell v. City of Yonkers, 104 N. Y. 434; Roberts v. Town of Eaton, 238 id. 420; Best v. State of New York, 203 App. Div. 339; affd., 236 N. Y. 662; McGuirk v. City of New York, 259 App. Div. 879), and no error is presented by the exclusion of evidence offered by plaintiff as against that defendant; and (2) the plaintiff established prima facie a cause of action against defendant Bondy. (St. Andrassy v. Mooney, 262 N. Y. 368, 370, 371.) Hagarty, Johnston and Taylor, JJ., concur; Lazansky, P. J., and Carswell, J., concur in the reversal of the judgment and the granting of a new trial as to defendant Bondy; but dissent afi to affirmance of the judgment in favor of the City of New York and vote to reverse that judgment also and to grant a new trial as to the city, upon the ground that plaintiff did not have a fair opportunity to present his cause; Lazansky, P. J., dissents on the further ground that there was a question of fact for a jury as to the negligence of defendant City of New York.